Cornell Law ReviewVolume 72Issue 4 May 1987 Article 5

Accomplice Testimony Under Contingent PleaAgreementsYvette A. Beeman

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Recommended CitationYvette A. Beeman, Accomplice Testimony Under Contingent Plea Agreements , 72 Cornell L. Rev. 800 (1987)Available at: http://scholarship.law.cornell.edu/clr/vol72/iss4/5

NOTES

ACCOMPLICE TESTIMONY UNDER CONTINGENTPLEA AGREEMENTS

In a criminal case the prosecutor will often make a plea agree-ment with an accomplice of the defendant. Under these tradition-ally sanctioned agreements the accomplice receives a reducedsentence in return for full and truthful testimony during the defend-ant's trial. In recent years, some prosecutors have further condi-tioned the accomplice's reduction in sentence upon the defendant'sindictment or conviction or the prosecutor's satisfaction with the ac-complice's testimony.

This Note addresses whether testimony made pursuant to suchcontingent plea agreements is so unreliable that courts should ex-clude the testimony from evidence. This Note begins with a histori-cal background of accomplice plea agreements and discusses thedue process doctrine used to analyze the constitutionality of suchagreements. It then examines recent developments involving con-tingent accomplice plea agreements. Finally, it concludes thatcourts should prohibit contingent accomplice plea agreementsbased upon defendants' due process rights and courts' supervisorypowers to reject unreliable evidence.

IBACKGROUND

A. The History of Accomplice Plea Agreements

The long history of prosecutorial leniency in return for accom-plice testimony has led to its widespread acceptance. Althoughcourts recognize that accomplice plea agreements may encourageperjury, they deem that the value of the information obtainedthrough such agreements outweighs the danger of unreliability.

1. At Common Law

Common law courts have sanctioned the practice of plea bar-gaining for centuries. At early common law, English courts consid-ered accomplices competent accusers in felony cases and eitherpardoned the accomplice upon the defendant's conviction or exe-cuted the accomplice upon the defendant's acquittal.' This practice

1 2 M. HALE, THE HISTORY OF THE PLEAS OF THE CROWN *235.

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fell into disuse because the likelihood of perjury by the accomplicewas thought to outweigh the probative value of his testimony. 2 Toencourage accomplice testimony, however, the practice of grantingpardons for "turning king's evidence" later evolved. 3 The Ameri-can criminal justice system expanded the English tradition byallowing bargains for leniency as well as for immunity fromprosecution.4

2. In Current American Jurisprudence

Currently, about ninety percent of all criminal defendants pleadguilty,5 and an unknown but substantial percentage of these defend-ants agree to testify against their co-defendants or co-conspiratorsin return for prosecutorial leniency.6 If the accomplice does not tes-tify fully and truthfully, the prosecutor may refuse the leniencypromised in the bargain. Courts sanction these "traditional" ac-complice plea agreements7 and recognize them as a proper exerciseof prosecutorial authority.8

2 Id. at *226.3 Id. at *304; see, e.g., Rex v. Brunton, 168 Eng. Rep. 894 (K.B. 1821) (sheep stealer

turns king's evidence on burglary indictment); The King v. Rudd, 168 Eng. Rep. 160(K.B. 1775) (bond forger testifies for crown).

4 E.g., State v. Riney, 137 Mo. 102, 104-05, 38 S.W. 718, 718-19 (1897) (accom-plice's belief that his testimony would result in lighter sentence did not make him incom-petent witness); State v. Geddes, 22 Mont. 68, 89, 55 P. 919, 926 (1899) (accomplicewitness "is not rendered incompetent by reason of any immunity offered").

5 J. BOND, PLEA BARGAINING AND GUILTY PLEAS § 1.02, at 2 (1975); H. MILLER, W.McDONALD &J. CRAMER, PLEA BARGAINING IN THE UNITED STATES 19 (1978); see also U.S.DEP'T OFJUSTICE, BUREAU OFJUSTICE STATISTICS, SOURCEBOOK OF CRIMINALJUSTICE STA-

TIsTICs-1985, at 479 (T. Flanagan & E. McGarrell eds. 1986) (table 5.20) (69.8% ofcriminal defendants brought before United States district courts in year endingJune 30,1984, pleaded guilty).

6 J. BOND, supra note 5, § 1.08; 2 ENCYCLOPEDIA OF CRIME AND JUSTICE 829 (S.

Kadish ed. 1983); see, e.g., Commonwealth v. Todd, 186 Pa. Super. 272, 142 A.2d 174(1958) (defendant testified as prosecution witness in other cases with expectation of rec-ommendation of concurrent sentences).

7 See, e.g., United States v. Boley, 730 F.2d 1326, 1333-34 (10th Cir. 1984); UnitedStates v. Tiche, 424 F. Supp. 996, 1000-01 (W.D. Pa.), aff'd, 564 F.2d 90 (3d Cir. 1977).

8 See, e.g., United States v. Librach, 536 F.2d 1228 (8th Cir.), cert. denied, 429 U.S.939 (1976); see also A.B.A., STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL

JUSTICE, THE PROSECUTION FUNCTION § 3.9(b)(vi) (1974) (prosecutor may decline toprosecute accused based on accused's cooperation in apprehension and conviction ofothers).

The Constitution places some limits upon a prosecutor's discretion regarding pleaagreements. Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978). Generally, prosecutorsmust uphold the proper standards of fairness and justice. Santobello v. New York, 404U.S. 257, 262-63 (1971). In the context of plea agreements, this standard requires thatprosecutors disclose all agreements to the defendant, Giglio v. United States, 405 U.S.150, 153-55 (1972), and uphold the terms of the agreement if the accomplice testifiestruthfully under the agreement. Santobello, 404 U.S. at 261. Prosecutors must use fairprocedures rather than merely advocate conviction. Berger v. United States, 295 U.S.78, 88 (1935).

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Accomplice plea agreements tend to produce unreliable testi-mony because they create an incentive for the accomplice to shiftblame to the defendant or other co-conspirators. Further, an accom-plice may wish to please the prosecutor to ensure lenient prosecu-tion in his own case. Nevertheless, courts have held that thetestimony of accomplices who receive lenient treatment is not per seunreliable. 9 Federal courts have allowed convictions based on un-corroborated testimony of accomplices to stand where the testi-mony is not "incredible or unsubstantial on its face."10 Convictionshave been sustained even when the accomplice is an admittedperjurer."

Courts may deem accomplice testimony incompetent if the pleaagreement departs from the traditional agreement to testify truth-fully.1 2 A number of state courts have censured bargains condi-tioned upon a witness's agreement to testify in a particular mannerand have overturned the resulting convictions on both due processand policy grounds.' 3 Courts prohibit these agreements becausethey provide a virtually irresistible temptation for the witness to saywhatever will satisfy the prosecution.

9 Caminetti v. United States, 242 U.S. 470, 495 (1917); Benson v. United States,146 U.S. 325, 334 (1892); United States v. Peters, 791 F.2d 1270, 1300 (7th Cir.), cert.denied, 107 S. Ct. 168 (1986); United States v. Evans, 697 F.2d 240, 245 (8th Cir.), cert.denied, 460 U.S. 1086 (1983); United States v. Anderson, 654 F.2d 1264, 1268 (8th Cir.),cert. denied, 454 U.S. 1127 (1981), 1156 (1982); see also Darden v. United States, 405 F.2d1054, 1056 (9th Cir. 1969) (plea bargaining between prosecutor and co-defendant doesnot amount to coerced testimony against defendant); Minkin v. United States, 383 F.2d427, 428 (9th Cir. 1967) (same).

10 See, e.g., Haakinson v. United States, 238 F.2d 775, 779 (8th Cir. 1956) and casescited therein.

11 See Rosen v. United States, 245 U.S. 467, 471 (1918); United States v. Miceli, 446F.2d 256, 258-59 (1st Cir. 1971); United States v. Margolis, 138 F.2d 1002, 1004 (3dCir. 1943); United States v. Kubacki, 237 F. Supp. 638, 643-44 (E.D. Pa. 1965); UnitedStates v. Segelman, 83 F. Supp. 890, 892-93 (W.D. Pa. 1949).

12 See infra note 13; see also Note, Accomplice Testimony Under Conditional Promise of Im-

munity, 52 CoLUM. L. REv. 138, 140 (1952).13 People v. Medina, 41 Cal. App. 3d 438,455, 116 Cal. Rptr. 133, 145 (1974) ("[A]

defendant is denied a fair trial if the prosecution's case depends substantially upon ac-complice testimony and the accomplice witness is placed, either by the prosecution orthe court, under a strong compulsion to testify in a particular fashion."); People v.Green, 102 Cal. App. 2d 831, 839, 228 P.2d 867, 871 (1951) ("miscarriage ofjustice"caused by state's use of testimony which was tainted beyond redemption because ofcondition upon which immunity depended); State v. Miller, 100 Mo. 606, 626, 13 S.W.832, 838 (1890) ("I do not believe that such a bargain as this to testify against the life ofanother should receive any countenance or sanction in a court ofjustice .... ") (emphasisadded); Franklin v. State, 94 Nev. 220, 223-24, 577 P.2d 860, 862 (1978) ("[I]f the cir-cumstances of the plea bargain would reasonably cause the alleged accomplice to be-lieve he must testify in a particular fashion, then a less explicit arrangement also violatesthe defendant's due process rights."); Harris v. State, 15 Tex. Crim. 629, 634 (1883) ("Awitness thus situated by the terms of the contract and the pendency of the indictmentwould, we believe, swear any and all things.... [W]e ... will not sustain a convictionobtained in such manner.").

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Until recently, at least two federal courts concurred in this anal-ysis and implied that testimony made pursuant to contingent agree-ments should be excluded from evidence. 14 Other federal and statecourts, however, admit the testimony of accomplices who are sen-tenced after testifying under traditional agreements. 15 Although adelayed sentence is not explicitly contingent upon the testimony'scontent, similar reasoning applies to both delayed sentences andcontingent agreements. In both cases, the accomplice's perceptionof what the government wants to hear will affect his testimony. Inthis respect, the courts have treated delayed sentencing and contin-gent agreements inconsistently.

B. The Standards of Procedural Due Process

The fifth and fourteenth amendments to the United States Con-stitution require fair procedures in state and federal courts.Although the Supreme Court has used various factors to determinethe exact requirements of procedural due process, the concept offundamental fairness is a constant theme. The Court has upheldaccomplice plea bargains as constitutional; however, the exact limi-tations upon prosecutorial discretion with respect to these agree-ments remains unclear.

1. The Doctrine

Due process guarantees defendants a right to fair procedureand has traditionally operated to exclude involuntary confessions 16

and unreliable witness testimony. 17 Such exclusions are particularly

14 See United States v. Winter, 663 F.2d 1120, 1133 (1st Cir. 1981) (possibly im-proper to invite witness to believe agreement contingent upon government's satisfactionwith testimony), cert. denied, 460 U.S. 1011 (1983); United States v. Librach, 536 F.2d1228, 1230 (8th Cir.) (An immunity agreement entered with an accomplice (Fowler) didnot constitute unfair prosecutorial conduct because "[t]he agreement was made andbinding upon the government before Fowler testified; it was not contingent upon thegovernment's satisfaction with the content of the testimony. Fowler could testify truth-fully and fully pursuant to the agreement without fear of reprisal."), cert. denied, 429 U.S.939 (1976).

15 E.g., United States v. Insana, 423 F.2d 1165, 1168-69 (2d Cir.), cert. denied, 400U.S. 841 (1970); United States v. Vida, 370 F.2d 759, 767-68 (6th Cir. 1966), cert. denied,387 U.S. 910 (1967); People v. Lyons, 50 Cal. 2d 245, 265-66, 324 P.2d 556, 566-67(1958) (en banc); State v. Harper, 713 S.W.2d 7, 10 (Mo. Ct. App. 1986).

16 See, e.g., Mincey v. Arizona, 437 U.S. 385 (1978) (questioning of seriouslywounded defendant in intensive care and transcription of defendant's written answersresulted in unreliable and involuntary statements); Rogers v. Richmond, 365 U.S. 534(1961) (confession resulting from impermissible police methods involuntary and un-trustworthy); Spano v. New York, 360 U.S. 315 (1959) (same).

17 See, e.g., Manson v. Brathwaite, 432 U.S. 98 (1977) (unduly suggestive police pro-cedures in obtaining witness identification of suspect may result in testimony so unrelia-ble that it violates due process rights of defendant); Foster v. California, 394 U.S. 440(1969) (same).

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necessary when customary methods of exposing unreliability, suchas cross-examination, impeachment, and the jurors' evaluation ofcredibility, cannot adequately safeguard a defendant's interest in be-ing tried upon reliable evidence.18

Under current doctrine, the Supreme Court generally considersfour factors important in determining the requirements of proce-dural due process for a criminal trial: whether the questioned proce-dure threatens the reliability of the fact-finding process,' 9 whetherthe practice has been historically accepted, 20 whether a per se con-stitutional prohibition should be imposed, 2' and the administrativecosts of any prohibition.22 The Court has fluctuated as to which fac-tors it should assess in a particular case and the weight that it shouldaccord each factor; some cases concentrate on the reliability of evi-dence obtained by questioned procedures and others give more im-portance to historical or administrative considerations. 23

a. Reliability of the Fact-Finding Process

Some courts give high priority to due process rights that furtherthe goal of accuracy in the fact-finding process. For example, theSupreme Court excludes involuntary confessions as unreliable

18 C. MCCORMICK, MCCORMICK ON EVIDENCE § 174, at 496-97 (E. Cleary 3d ed.1984) (context of suggestive line-ups). This rule clearly extends to matters dealing witha witness's credibility. LaFrance v. Bohlinger, 499 F.2d 29, 34 (Ist Cir.) (coerced testi-mony of witnesses is unreliable and should be excluded), cert. denied, 419 U.S. 1080(1974); see infra notes 122-26 and accompanying text (explaining why jurors cannot accu-rately weigh testimony given under contingent agreements).

19 See, e.g., Stone v. Powell, 428 U.S. 465, 490 (1976) (claim of illegal search andseizure different from most other claims because application of exclusionary rule de-flects truth-finding process); Schneckloth v. Bustamonte, 412 U.S. 218, 251 (1973)(Powell, J., concurring) (unlike claim of denial of effective counsel, claim of illegal searchand seizure does not impugn integrity of fact-finding process).

20 See, e.g., United States v. Watson, 423 U.S. 411 (1976) (historical acceptance ofwarrantless arrests); Costello v. United States, 350 U.S. 359 (1956) (tradition that grandjury may consider evidence inadmissible at trial).

21 See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966) (to avoid involuntary confes-sion, police must recite suspect's rights before interrogation); Manson v. Brathwaite,432 U.S. 98, 125 (1977) (Marshall, J., dissenting) (per se rule would discourage use ofunreliable investigatory methods).

22 See, e.g., Steagald v. United States, 451 U.S. 204 (1981) (costs should be consid-ered in determining if particular type of search is unreasonable under fourth amend-ment); Marshall v. Barlow's Inc., 436 U.S. 307 (1978) (same).

Professors LaFave and Israel suggest that these four factors are the most importantand consistently applied measures that the Supreme Court has used in assessing proce-dural due process in a criminal context. 1 W. LAFAvE &J. ISRAEL, CRIMINAL PROCEDURE§ 2.8, at 109 (1984).

23 Id.; see, e.g., Stone v. Powell, 428 U.S. 465 (1976) (reliability of fact-finding accu-racy given higher priority than other due process interests); Santobello v. New York, 404U.S. 257 (1971) (administrative costs emphasized in holding that plea bargaining per-missible); Costello v. United States, 350 U.S. 359 (1956) (grand jury may consider evi-dence inadmissible at trial because such consideration is historically accepted).

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evidence. 24 Similarly, a prosecutor cannot attempt to use a defend-ant's post-arrest silence after receiving Miranda warnings forimpeachment. 25

In cases concerning police procedures for witness identificationof suspects, 26 the Court has voiced the concern that juries not hearthe testimony unless the evidence has "aspects of reliability." 27

Judges must assess the totality of the circumstances when decidingwhether the procedures used are so "unnecessarily suggestive" thatthey deny the defendant due process.28 "[R]eliability is the linchpinin determining the admissibility of identification testimony." '29

Because disallowing certain pretrial practices greatly increasesthe reliability of the evidence offered, the prohibition of these prac-tices enhances the fairness of the trial process. In Foster v. Califor-nia,30 for example, the Supreme Court excluded identificationtestimony because the police procedure used in obtaining the iden-tification rendered the testimony unreliable. In Foster, the only wit-ness to an armed robbery viewed a three-man line-up, and when thewitness could not positively identify the defendant the police ar-ranged a one-to-one meeting. Even after this confrontation, how-ever, the witness was unsure of the identification, so one week laterthe police arranged a second line-up of five men in which the de-fendant was the only man from the first line-up to appear. This timethe witness identified the defendant.3 ' The Court held that the ele-ments of the identification procedure made it inevitable that the wit-ness would testify as he did. Because the pretrial procedure was"unnecessarily suggestive," it undermined the reliability of the wit-ness's testimony and admission of the testimony violated dueprocess.32

b. Historical Acceptance

The Supreme Court has noted that historical acceptance of a

24 See cases cited supra note 16.25 See Doyle v. Ohio, 426 U.S. 610, 617-18 (1976) ("Silence in the wake of [Miranda]

warnings may be nothing more than the arrestee's exercise of [his) Miranda rights....[Ilt would be fundamentally unfair and a deprivation of due process to allow the ar-rested person's silence to be used to impeach .... ").

26 Manson v. Brathwaite, 432 U.S. 98 (1977); Neil v. Biggers, 409 U.S. 188 (1972);Foster v. California, 394 U.S. 440 (1969); Stovall v. Denno, 388 U.S. 293 (1967); Gilbertv. California, 388 U.S. 263 (1967); United States v. Wade, 388 U.S. 218 (1967).

27 Manson, 432 U.S. at 112.28 Stovall, 388 U.S. at 302; see also Gilbert, 388 U.S. at 274 (admitting such testimony

would "seriously aggravate whatever derogation exists of the accused's right to a fairtrial").

29 Manson, 432 U.S. at 114.30 394 U.S. 440 (1969).31 Id. at 441-42.32 Id. at 442-43.

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procedure supports the validity of its use.3 3 In Costello v. UnitedStates,34 for example, the Court permitted a grand jury to considertestimony inadmissible at trial.3 5 The Court stated that grand jurorshistorically have great latitude in weighing all available informationto determine whether to bring an indictment.3 6 The Court there-fore refused to quash the indictment on the grounds that it was sup-ported by unreliable evidence.

c. Desirability of a Per Se Rule

In some instances the Supreme Court has favored rulings tai-lored to specific cases and particular circumstances, recognizingthat, despite unorthodox procedures, reliable evidence should notbe excluded. At other times, the Court has adopted broader per seprohibitions because they provide more guidance to courts and lawenforcement agencies.3 7 Blanket prohibitions have the advantage ofpreventing lower courts from readily evading case-by-case standardsthrough opaque and intricate rulings that merely reflect the courts'individual values.38 The Supreme Court has consistently held thatcertain guarantees require absolute protection without regard to a

33 See United States v. Watson, 423 U.S. 411 (1976) (historical acceptance of war-rantless arrests); Ross v. Moffitt, 417 U.S. 600 (1974) (no right to counsel for discretion-ary state appeals or petitions for certiorari to Supreme Court because consistent policythat counsel not needed); Green v. United States, 356 U.S. 165 (1958) (viewed fromhistorical perspective federal courts have power to punish for criminal contempt withoutindictment or jury trial), overruled, Bloom v. Illinois, 391 U.S. 194 (1968); Costello v.United States, 350 U.S. 359 (1956) (upholding tradition that grand jury may considerevidence inadmissible at trial).

TheJustices, however, have somewhat modified this stance when interpreting guar-antees that arguably were intended to be in accord with the views of contemporary soci-ety. National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 620 (1949)(RutledgeJ., concurring) ("[O]ur Constitution today would be very different from whatit is if such a narrow and literal construction of each of its terms had been transmutedinto an inflexible rule of constitutional interpretation."); see also 1 W. LAFAvE &J. ISRAEL,supra note 22, at 111 (Justices generally agree that historical acceptance has less signifi-cance in interpreting "open-ended" guarantees); Corwin, Judicial Review in Action, 74 U.PA. L. REV. 639, 660 (1926) (arguably, due process clause was intended to be "mouldedto the views of contemporary society").34 350 U.S. 359 (1956).35 Id. at 363.36 Id. at 362.37 The Court's treatment of the admissibility of confessions in fifth amendment

cases illustrates the difficulties encountered in developing case-by-case standards. Even-tually, the Court turned to an application of per se requirements in Miranda v. Arizona,384 U.S. 436 (1966). 1 W. LAFAVE &J. ISRAEL, supra note 22, at 114 n.21. See generallyAllen, The Judicial Quest for Penal Justice: The Warren Court and the Criminal Cases, 1975 U.ILL. L.F. 518, 535 (change in Court's treatment of search and seizure cases).

38 1 W. LAFAvE & J. ISRAEL, supra note 22, at 114 & n.23 (citing Amsterdam, TheSupreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U. L. REv. 785 (1970) andKitch, The Supreme Court's Code of Criminal Procedure: 1968-1969 Edition, 1969 Sup. CT. REV.155, as articles supporting view that Court is concerned with lower courts' insensitivityto constitutional claims, especially where guilt is clear).

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case-by-case balancing of reliability.3 9

On the other hand, the Supreme Court has held that courtsmust decide the constitutionality of witness identification proce-dures on a case-by-case basis.40 The Court refused to apply per seprohibitions against suggestive witness identification proceduresbecause they can prove reliable and necessary under certaincircumstances.

41

d. Administrative Costs

Expansive due process standards often impose a substantialburden on the administration of the criminal justice system. Thesecosts include increased expenses,42 additional hearings, 43 and ob-stacles to criminal punishment. 44 Because the Supreme Court hasgiven varying weight to CoStS, 4 5 debate continues regarding the ex-tent to which the Court should consider the practical effects of itsconstitutional decisions. 46 Nevertheless, there is a consensus thatthe Court should consider administrative costs only where a sub-

39 The fifth amendment right to freedom from self-incrimination, for example, re-ceives absolute protection. See, e.g., NewJersey v. Portash, 440 U.S. 450, 459 (1979).

40 See supra notes 26-32 and accompanying text.41 See Simmons v. United States, 390 U.S. 377, 385-86 (1968) (identification of sus-

pect by five bank employees day after robbery from group snapshots was reliableenough to be admitted); Stovall v. Denno, 388 U.S. 293 (1967) (confrontation and iden-tification of accused in hospital did not violate due process when no one knew how longhospitalized witness would live).

42 See, e.g., Mayer v. City of Chicago, 404 U.S. 189 (1971) (indigent defendant hasright to free record of proceeding in misdemeanor appeals); Gideon v. Wainwright, 372U.S. 335 (1963) (indigent defendants entitled to appointed counsel at trial).

43 See, e.g., Morrissey v. Brewer, 408 U.S. 471 (1972) (requirement of preliminaryhearing in parole reevaluation proceedings).

44 See, e.g., Mapp v. Ohio, 367 U.S. 643, 659 (1961) (exclusion of evidence obtainedin violation of fourth amendment will undoubtedly allow some criminals to go free).

45 See, e.g., United States v. Calandra, 414 U.S. 338 (1974) (damage to institution ofgrand jury caused by invoking fourth amendment exclusionary rule outweighs incre-mental detrimental effect on police behavior); Morrissey, 408 U.S. at 471 (1972) (no dis-cussion of costs of new requirement of preliminary hearing in parole reevaluationproceedings); Santobello v. New York, 404 U.S. 257, 260 (1971) (plea bargaining shouldbe encouraged because it conserves judicial resources).

46 See, e.g., Mayer v. City of Chicago, 404 U.S. 189, 196-97 (1971) (Court cannotbalance state's fiscal interest against defendant's need to have transcript for appeal be-cause state interest is irrelevant); Baldwin v. New York, 399 U.S. 66, 75 (1970) (Courtshould not consider administrative costs when interpreting Constitution); Williams v.Florida, 399 U.S. 78, 112-13 (1970) (Black, J., concurring in part, dissenting in part)(same); Scott v. Illinois, 440 U.S. 367, 384 (1979) (Brennan, J., dissenting) (costs ofproviding counsel for indigent defendants in cases which do not involve imprisonmentare "irrelevant and speculative"); Douglas v. California, 372 U.S. 353, 359 (1963)(Clark, J., dissenting) (assistance of counsel upon appeal puts too great burden on statejudicial machinery). The Court has stated that if the constitutional command is unequiv-ocal, costs are irrelevant. Payton v. New York, 445 U.S. 573, 602 (1980). Fourth amend-ment cases, however, frequently discuss the practical costs of particular rulings. See, e.g.,Steagald v. United States, 451 U.S. 204, 220-22 (1981) (costs of requiring search war-

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stantial burden on the criminal justice system exists. 4 7

2. The Procedural Due Process of Accomplice Plea Agreements

Until recently, few courts had directly analyzed the proceduraldue process implications of accomplice plea bargaining. In Lisenbav. California48 the Supreme Court held that a traditional agreementof prosecutorial leniency in return for accomplice testimony did notviolate the due process rights of the defendant. Like most courts,however, the Supreme Court has recognized that accomplice agree-ments may encourage perjured testimony.49 Despite this realiza-tion, many courts have held that the terms of accomplice pleaagreements merely affect the weight of the testimony, not its admis-sibility. 50 These courts have determined that mandatory disclosureof the terms of the agreements and defense attorneys' cross-exami-nations sufficiently expose incentives to lie so that jurors can prop-erly weigh witnesses' credibility.

Courts have carved out one exception to the theory that accom-plice agreements affect only the weight of the testimony. This ex-ception applies when the prosecution interferes with a defensewitness's free and unhampered decision to testify. If the prosecutorinfluences the witness to testify for the prosecution instead of thedefense or interferes with the content of his testimony for the de-fense, some courts will find a violation of the defendant's due pro-cess right to a fair trial. 5 ' When such a due process violation occurs,an appellate court must reverse the lower court's conviction withoutregard to the actual prejudice to the defendant.52

rant before entering home); Marshall v. Barlow's, Inc., 436 U.S. 307, 316-22 (1978)(costs of requiring warrant to inspect work areas).

47 See Scott v. Illinois, 440 U.S. 367, 373 (1979) (costs of providing indigent defend-ants with counsel in cases not involving imprisonment outweigh the benefits); Mirandav. Arizona, 384 U.S. 436, 481 (1966) (warnings against self-incrimination do not sub-stantially interfere with efficient administration of criminal justice system).

48 314 U.S. 219, 227 (1941).49 Washington v. Texas, 388 U.S. 14, 22-23 (1967); see supra notes 13-14 and ac-

companying text.50 See, e.g., United States v. Gomez, 810 F.2d 947, 956 (10th Cir.), cert. denied, 107 S.

Ct. 2488 (1987); United States v. Kimble, 719 F.2d 1253, 1257 (5th Cir. 1983), cert.denied, 464 U.S. 1073 (1984); United States v. Evans, 697 F.2d 240, 245 (8th Cir.), cert.denied, 460 U.S. 1086 (1983); United States v. McCallie, 554 F.2d 770, 772 (6th Cir.1977); United States v. Borman, 437 F.2d 44, 45-46 (2d Cir.), cert. denied, 402 U.S. 913(1971). For an argument contra, see infra notes 122-26 and accompanying text.

51 United States v. Fricke, 684 F.2d 1126, 1130 (5th Cir. 1982), cert. denied, 460 U.S.1011 (1983); United States v. Goodwin, 625 F.2d 693, 703 (5th Cir. 1980); United Statesv. Henricksen, 564 F.2d 197, 198 (5th Cir. 1977); United States v. Thomas, 488 F.2d334, 336 (6th Cir. 1973).

52 United States v. Hammond, 598 F.2d 1008, 1013 (5th Cir. 1979); United Statesv. Morrison, 535 F.2d 223, 228 (3d Cir. 1976).

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IIRECENT DEVELOPMENTS IN ACCOMPLICE PLEA BARGAINING

In recent years, several federal courts have tried cases involvingcontingent plea agreements between prosecutors and accomplices.In these cases, the accomplice pleaded guilty and agreed to testifyagainst the defendant in return for a reduction in sentence. Thedeals, however, were contingent upon either success in obtainingfurther indictments53 or the value to the prosecution of the testi-mony or information provided. 54 The defendants argued thatunder these circumstances witnesses will go to any length, includingperjury, to obtain the benefits of their bargain. The defendantsclaimed that such governmental encouragement of perjury violatesthe fundamental right to a fair trial guaranteed by the due processclause of the fifth amendment.55

In 1985, the Eighth Circuit addressed these issues in UnitedStates v. Waterman.56 In Waterman, the prosecution's witness, EugeneGamst, pleaded guilty and agreed to testify before a grand jury. Hewas promised a two-year reduction in sentence if the grand juryhanded down more indictments, and was told that the appropriateauthorities would be informed if he cooperated at trial.57 After re-ceiving a ten-year sentence, Waterman questioned the constitution-ality of the agreement,58 claiming that the agreement encouragedperjury at trial to an extent that cross-examination could not rectify.Although other evidence buttressed the reliability of Gamst's testi-mony, an Eighth Circuit panel held that Gamst's testimony violatedWaterman's due process rights because the government offeredfavorable treatment to Gamst contingent upon the outcome of histestimony.59 Upon rehearing en banc, however, the evenly dividedEighth Circuit vacated the panel decision and affirmed the districtcourt's determination that the contingent agreement did not violatedue process.60

53 United States v. Waterman, 732 F.2d 1527, 1528 (1984), vacated en banc, No. 83-2159 (8th Cir. Sept. 20, 1984), cert. denied, 471 U.S. 1065 (1985); United States v. Baresh,595 F. Supp. 1132, 1134 (S.D. Tex. 1984).

54 United States v. Spector, 793 F.2d 932 (8th Cir. 1986), cert. denied, 107 S. Ct. 876(1987); United States v. Fallon, 776 F.2d 727 (7th Cir. 1985); United States v. Dailey,759 F.2d 192 (1st Cir. 1985).

55 Spector, 793 F.2d at 936; Fallon, 776 F.2d at 732; Dailey, 759 F.2d at 194; Water-man, 732 F.2d at 1530; Baresh, 595 F. Supp. at 1133.

56 732 F.2d 1527 (1984), vacated en banc, No. 83-2159 (8th Cir. Sept. 20, 1984), cert.

denied, 471 U.S. 1065 (1985).57 732 F.2d at 1529 nn.1 & 2.58 Id. at 1530. Although Waterman questioned the agreement itself, clearly the use

of the resulting testimony at trial was the act that violated his due process rights.59 Id. at 1531.60 Id. at 1533. One of the three panel judges, ChiefJudge Lay, did not participate

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Deciding a similar issue in United States v. Dailey,6' a Massachu-setts district court held the admission of accomplice testimony un-constitutional, relying in part on the reasoning of the three-judgepanel in Waterman.62 By the time the First Circuit heard Dailey onappeal, the Eighth Circuit had vacated the Waterman panel opin-ion.63 The First Circuit nevertheless distinguished the panel opin-ion 64 when it vacated the district court's ruling.65

The defendant in Dailey argued that the contingent accompliceagreements violated his due process rights because the agreementsrequired more than full and truthful testimony. Two of the threeagreements contained a promise for full cooperation in return for arecommendation of a sentence not to exceed twenty years. 66 Fur-thermore, depending upon the value of the witnesses' testimony,the prosecution could recommend a sentence of only ten years. 67

The agreement with the third witness consisted of a four-month stayof sentencing, the possibility of a further stay, and the potential forgovernment support on a motion for sentence reduction. 68 Theselast two benefits depended upon the value or "benefit" of the infor-mation to the government as determined by the prosecutor.69 Thedistrict court noted that the agreements required more than full co-operation by the witnesses because otherwise the provisions con-

in the en banc vote because of illness. If he had voted and maintained his former posi-tion, the lower court would have been reversed.

61 589 F. Supp. 561 (D. Mass. 1984).62 Id. at 563-64. The district court decided Dailey prior to the reconsideration of

Waterman en banc.After the district court's decision in Dailey, the Maine district court decided United

States v. Kenney, 598 F. Supp. 874 (D. Me. 1984). In Kenney, an accomplice plea agree-ment required "actively assisting law enforcement officials in procuring the arrest andsubsequent conviction of his associates." Id. at 878. Because Waterman had not yet beenvacated en banc and Dailey had not yet been vacated on appeal, the court distinguishedKenney from these cases in upholding the agreement. The court stated that the contin-gency in Kenney depended upon the accomplice taking an active part in making drugbuys and recording telephone conversations rather than procuring the arrest per se. Id.at 880. Furthermore, the court stated that the insistence upon truthful testimony in theagreement removed any incentive to fabricate. Id. at 879.

63 Waterman was decided on May 2, 1984 and vacated on September 20, 1984. 732

F.2d at 1527. Dailey was decided June 22, 1984, 589 F. Supp. at 561, and vacated onApril 5, 1985. 759 F.2d at 192.

64 Id. at 196-98.65 Id. at 201. The distinction that the First Circuit deemed important was that the

Dailey agreements were dependent upon an indefinite standard, i.e., testimony that wasvaluable to the prosecutidn. Id. at 197. Because the agreements in Waterman were con-ditioned upon further indictments, the First Circuit found that although these agree-ments were perhaps impermissibly premised upon successful prosecution, the Daileyagreements were not. Id.

66 Id. at 194.

67 Id68 Id at 195-96.69 Id. at 196. For the text of this agreement, see 589 F. Supp. at 565-66.

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cerning the ten-year sentences and the further stay of sentencingwould be superfluous. 70 Therefore, the district court concludedthat the prosecutor provided the witnesses with incentives to lie byconditioning further rewards upon the government's satisfaction. 7'

The First Circuit disagreed with this analysis and concludedthat the agreements did not encourage perjury to an unconstitu-tional degree. The court viewed the leniency available under theagreements as independent from the prosecution's success. 72 Fur-thermore, the court stated that the government had established alegitimate interest in making the plea bargain contingent. Becausethe first two witnesses were suspected of being major drug import-ers with many connections, the prosecution could encourage full co-operation more effectively by using contingent agreements. 73 TheFirst Circuit regarded these circumstances as "fairly compelling rea-sons for having made these plea agreements somewhat open-ended,"' 74 implying that the governmental interest in the agree-ments outweighed the possible harm of perjured testimony. Thecourt concluded that the requirements of due process were satisfied,and the testimony was admitted.75

The First Circuit relied in part on United States v. Kimble76 inrefusing to exclude the testimony of the witnesses. 77 In Kimble, anaccomplice pleaded guilty and agreed to testify in return for atwenty-year sentence conditioned upon "the acceptance of the ade-quacy of his cooperation. ' 78 Although the witness acknowledgedthat he had repeatedly committed perjury on previous occasions,the court decided that the agreement did not put impermissiblepressure upon the witness to lie again. The court held that theagreement should only affect the weight of the evidence, not itsadmissibility.

79

70 Id. at 563.71 Id. at 564.72 Dailey, 759 F.2d at 197.73 Id.74 Id75 Id. at 200. The First Circuit vacated the district court's pre-trial order barring

the three accomplices' testimony and remanded to the District of Massachusetts for fur-ther proceedings. Id. at 201.

In United States v. Silvestri, 790 F.2d 186 (1st Cir.), cert. denied, 107 S. Ct. 197(1986), the defendants urged the court to reconsider its holding in Dailey because sev-eral witnesses in Silvestri testified under the same plea agreement used in Dailey. TheFirst Circuit rejected the defendant's arguments for the same reasons set forth in Daiey.790 F.2d at 188 n.l.

76 719 F.2d 1253 (5th Cir. 1983), cert. denied, 464 U.S. 1073 (1984).77 Dailey, 759 F.2d at 198-99.78 Kimble, 719 F.2d at 1255.79 Id. at 1256-57. Kimble can be distinguished from Dailey, however, because the

Kimble agreement did not necessarily encourage biased or perjured testimony. Thetwenty year sentence recommendation in Kimble was not contingent upon the value of

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In the aftermath of Waterman and Dailey, two circuit court caseshave found contingent plea agreements constitutional. In UnitedStates v. Fallon80 the Seventh Circuit held that the prosecutor couldcondition the charges brought against a co-conspirator upon thelevel of his cooperation at the defendant's trial. The agreement fur-ther stated that "if the level of cooperation would materialize as rep-resented, . . . the government would, at the time of sentencing,recommend that the client not be incarcerated" and that the prose-cution would "be in the best posture to evaluate the witness' ef-forts" after trial.81 In United States v. Spector8 2 the Eighth Circuitupheld a similar agreement contingent upon cooperation in "solv-ing and prosecuting crimes." Both courts noted the cases' factualsimilarity to Dailey and found its reasoning persuasive.8 3 Limitinginstructions to the jury, impeachment, and cross-examination weredeemed procedurally adequate to safeguard against any dangers todue process.8 4

United States v. Bareshs5 is the only recent case in which a federalcourt deemed a plea bargain agreement so conducive to perjury thatit tainted the testimony beyond any possibility of redemption.8 6 InBaresh, the contingent plea agreement provided the witness with apardon and permission to keep assets obtained with his narcoticsprofits if his testimony led to the arrest and indictment of two speci-fied defendants. If the testimony did not lead to arrest and indict-ment, however, the witness probably would receive a fifteen-yearsentence even if he told the full truth.8 7 The district court for theSouthern District of Texas concluded that the witness's devastatingand totally uncorroborated testimony against a defendant whom thegovernment had originally doubted it could indict was so unreliablethat its admission violated the defendant's due process rights.88

the testimony to one party, as in Dailey, but merely upon the "adequacy" of the testi-mony. The witness's previous record may have encouraged the prosecution to condi-tion the sentence in this manner to encourage truthful, rather than perjured, testimony.

80 776 F.2d 727, 733 (7th Cir. 1985).81 Id.82 793 F.2d 932, 936-37 (8th Cir. 1986), cert. denied, 107 S. Ct. 876 (1987).83 776 F.2d at 733-34; 793 F.2d at 937.84 776 F.2d at 734; 793 F.2d at 937.85 595 F. Supp. 1132 (S.D. Tex. 1984).86 United States v. Peters, 791 F.2d 1270, 1299-1301 (7th Cir.), cert. denied, 107 S.

Ct. 168 (1986), distinguished Baresh, Dailey, and Waterman in deciding that no contingentplea agreement, and therefore no due process violation, existed.

87 595 F. Supp. at 1134 n.2.88 Id. at 1136-37.

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IIIANALYSIS

The Constitution guarantees that the government may not im-prison a person except in accordance with fair procedures. 89

Prosecutorial use of outcome-oriented agreements to obtainfavorable testimony exceeds the parameters of fair criminal proce-dure. Defendants lack comparable bargaining leverage that wouldenable them to elicit similarly favorable testimony from witnesses.Prosecutors, whose duty is to seek justice rather than convictions, 90

should not place the desire for convictions ahead of the pursuit ofunbiased testimony. Buying testimony with conditional leniencytips the scales of justice by inviting perjury.

Two factors support the prohibition of contingent plea agree-ments. First, the admission of testimony obtained by contingentplea agreements violates the defendant's due process rights. Be-cause contingent plea agreements encourage embellishment orfabrication, the resulting testimony is not reliable. The SupremeCourt has stated that due process requires the exclusion of patentlyunreliable testimony. Other factors used to assess due process im-plications, such as administrative burdens and historical acceptance,also indicate that using contingent plea agreements violates the de-fendant's due process rights.

Second, courts should disallow these agreements under theirinherent supervisory powers to require reliable evidence and to up-hold fair procedural standards at trial. The exclusion of testimonyinduced by contingent agreements maintains a minimal level of ac-curacy in admitted evidence because the witness's overwhelming in-centives to lie frustrate the effectiveness of cross-examination. Thegoals of deterring prosecutorial overreaching and upholding judi-cial integrity also provide grounds for the exclusion of testimonymade under contingent plea agreements. The judicial duty to en-sure a fair trial mandates the prohibition of prosecutorial practiceswhich border on the bribery of witnesses.

89 The fifth amendment's guarantee of due process requires fair procedures at trial.See, e.g., Manson v. Brathwaite, 432 U.S. 98 (1977) (admission of unreliable testimonyregarding identification of suspect made pursuant to suggestive police procedures vio-lates due process); Stovall v. Denno, 388 U.S. 293 (1967) (same). Like the due processclause, the sixth amendment requires fair conduct and procedures at trial. However, theconcerns of the sixth amendment are generally limited to the right to a speedy andpublic trial by an impartial jury, the right to be informed of the nature of the accusationand confront government witnesses, and the right to assistance of counsel and compul-sory process. See Mayer v. City of Chicago, 404 U.S. 189 (1971) (indigent's right to freetranscript in misdemeanor appeals); Douglas v. California, 372 U.S. 353 (1963) (indi-gent's right to appointed counsel on first appeal).

90 Berger v. United States, 295 U.S. 78, 88 (1935); A.B.A., supra note 8, § 1.1(c).

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A. Due Process Analysis

The Supreme Court has traditionally considered four factorswhen assessing a criminal defendant's due process right to a fairtrial.91 An analysis of these factors indicates that the use of testi-mony made under contingent plea agreements is unconstitutional.

1. Reliability of the Fact-Finding Process

The principles illustrated by Foster v. California,92 where theCourt excluded identification testimony because the suggestivenessof the identification procedure undermined its reliability, apply tocontingent plea agreements. Bargains conditioned upon the prose-cution's satisfaction with a witness's testimony are more than "un-necessarily suggestive." In effect, they demand rather than suggestthat witnesses testify in certain ways in order to receive the agree-ment's benefits. 93 These agreements constitute a far more persua-sive suggestion than improper line-up procedures, however,because the suggestion inherent in a contingent agreement is cou-

91 See supra notes 19-23 and accompanying text.92 394 U.S. 440 (1969); see supra notes 30-32 and accompanying text.93 Even absent contingent rewards, courts recognize that accomplices have a great

interest in lying in favor of the government: "To think that criminals will lie to save theirfellows but not to obtain favors from the prosecution for themselves is indeed to clothethe criminal class with more nobility than one might expect to find in the public atlarge." Washington v. Texas, 388 U.S. 14, 22-23 (1967).

A traditional plea agreement already contains a great incentive for the accompliceto testify with the aim of pleasing the prosecutor. Boone v. Paderick, 541 F.2d 447, 451(4th Cir. 1976), cert. denied, 430 U.S. 959 (1977); see also Washington, 388 U.S. at 22-23(allowing accused accomplice to testify for prosecution creates great incentive for per-jury); United States v. Meinster, 619 F.2d 1041, 1045 (4th Cir. 1980) ("[P]romises ofimmunity or leniency premised on cooperation in a particular case may provide a stronginducement to falsify in that case."); DuBose v. LeFevre, 619 F.2d 973, 979 (2d Cir.1980) (agreements in general terms create an incentive on witness's part to testify favor-ably for state); Note, A Prosecutor's Duty to Disclose Promises of Favorable Treatment Made toWitnesses for the Prosecution, 94 HARV. L. REV. 887, 890 (1981) ("[P]romises of favorabletreatment directly premised on 'cooperative' testimony create a clear incentive for falsifi-cation.").

In an agreement premised solely upon indictment, conviction, or the prosecutor'ssatisfaction with the witness's testimony, that incentive becomes virtually irresistible. SeeUnited States v. Baresh, 595 F. Supp. 1132, 1135 (S.D. Tex. 1984) (agreement contin-gent upon indictments "placed far more stress upon [witness's] veracity (though but-tressed by the government's requirement of truthfulness) than its gossamer frailnesscould withstand"); United States v. Turner, 490 F. Supp. 583, 602 (E.D. Mich. 1979)(credibility of witness is more suspect when he believes that leniency is contingent uponhis testimony), aff'd, 633 F.2d 219 (6th Cir. 1980), cert. denied, 450 U.S. 912 (1981); Peo-ple v. Green, 102 Cal. App. 2d 831, 838-39, 228 P.2d 867, 871-72 (1951) (agreementpremised upon conviction of defendant resulted in unfair trial); Note, supra note 12, at140 ("Judicial censure of bargains conditioned upon effective prosecution of the defend-ant stems from a feeling that they exert so great a pressure upon a witness to perjurehimself that a conviction based on such testimony cannot be upheld.").

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pled with significant rewards to the witness. 94 The likelihood of un-reliability is therefore much greater when incarceration is at stake.Such reward-induced testimony thus falls within the category of evi-dence which is so unreliable that its admission violates the defend-ant's due process rights. As the panel in the Waterman decisionstated, there is "no place in due process law for positioning the juryto weed out the seeds of untruth planted by the government." 95

2. Historical Acceptance

The Supreme Court has suggested that historical acceptance ofcertain procedures creates a strong presumption of constitutional-ity.96 Contingent agreements, however, historically have not beenaccepted. Before Waterman and Dailey, no federal court had heldthat contingent plea agreements satisfy the requirements of dueprocess. Indeed, no federal case had addressed the question. Simi-larly, before 1984, no state court had upheld the use of such agree-ments to procure testimony at trial. 97 Thus, considering the shorthistory of acceptance of contingent plea agreements, the "historicalacceptance" factor lends no support to the practice of conditioninga lenient sentence upon satisfactory accomplice testimony. This isparticularly true considering society's increased concern within thepast century for fair trial procedures. 98

94 The availability of rewards in return for specific testimony constitutes bribery inthe layman's usage of the term, if not according to statutory definition. See infra notes145-48 and accompanying text.95 732 F.2d at 1532.96 See cases cited supra note 33.97 See supra note 13 and accompanying text. After the federal courts' decisions in

Waterman and Dailey, some state courts have been more receptive to contingent pleaagreements. In State v. O'Connor, 378 N.W.2d 248, 251-52 (S.D. 1985) (plurality opin-ion), for example, the South Dakota Supreme Court assessed a plea agreement that wascontingent upon the recovery of stolen property and the arrest of co-conspirators. Inupholding the constitutionality of the agreement the court cited Waterman and Dailey andstated:

Contingent plea agreements should be reserved for the very excep-tional cases. They cannot be contingent upon the return of an indictmentor a guilty verdict. In the rare exceptional cases where the value and theextent of the accomplice's knowledge is uncertain, but likely to be verygreat, and there is full disclosure to the jury, a constitutional violationdoes not occur. In this case, the O'Connor plea agreement involvedtruthful testimony of a co-conspirator and other witnesses leading to thearrest. Although we do not approve of these types of contingent pleaagreements, in this case it is not a violation of due process rights underthe Fifth Amendment. The jury was fully aware of the plea agreementand O'Connor had a full and complete opportunity to cross-examine thebenefactor of that agreement.

Id. at 252 (citations omitted).98 The Court's concern with fairness at trial has increased as society's concern has

increased. Gideon v. Wainwright, 372 U.S. 335 (1963), which overruled Betts v. Brady,316 U.S. 455 (1942), illustrates this trend. In holding that indigent defendants must be

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3. Desirability of a Per Se Rule

The Supreme Court has applied a case-by-case analysis of sometrial procedures where the procedures in question were reliable andnecessary under the circumstances.9 9 This reasoning, however doesnot apply fully to contingent agreements. Contingent agreementsare never necessary to obtain accomplice testimony because tradi-tional plea agreements of leniency in return for truthful testimonyalready serve the government's purpose of obtaining testimony.Traditional agreements allow the prosecution to scrutinize the truthof the testimony and withhold the benefits of the agreement if thewitness fails to disclose the full truth. Contingent agreements onlyadd the threat to the witness that telling the truth alone may notresult in collecting the bargained-for benefits. Furthermore, per serules deter misconduct more forcefully than a case-by-case analysisof the circumstances. 100 Thus, contingent agreements are unneces-sary and merit a per se prohibition.

4. Administrative Costs

Courts have offered several administrative justifications for con-tingent accomplice plea agreements. First, a prosecutor may notknow the extent of a witness's knowledge and therefore has an inter-est in negotiating an agreement that places a premium on full andcomplete testimony. 1 1 Second, some accomplice witnesses who aretrying to escape punishment 10 2 or fear reprisals from the defendanthave no incentive to testify truthfully, especially if they lied underoath before.' 0 3 Third, a prosecutor reluctant to bargain with an ac-complice may want to condition the bargain upon concrete resultsto ensure that the government reaps some benefit from itsleniency. ' 0 4

Prosecutors do not need to use contingent plea agreements toachieve valid prosecutorial objectives, however, because traditionalplea agreements already perform such functions. Under the first

appointed counsel in felony cases, the Gideon Court agreed that Belts was "an anachro-nism when handed down." 372 U.S. at 345. Bloom v. Illinois, 391 U.S. 194 (1968), alsohighlights changed attitudes toward the criminal justice process. By overruling Green v.United States, 356 U.S. 165 (1958), Bloom rejected the historical acceptance of federalcourts' power to punish for criminal contempt without an indictment or a jury trial.

99 See supra notes 40-41 and accompanying text.100 Manson v. Brathwaite, 432 U.S. 98, 110 (1977); see Neil v. Biggers, 409 U.S. 188,

199 (1972) ("The purpose of a strict rule barring evidence of unnecessarily suggestiveconfrontations would be to deter the police from using a less reliable procedure where amore reliable one may be available .... ").

1O1 Dailey, 759 F.2d at 197; O'Connor, 378 N.W.2d at 252 (plurality opinion).102 E.g., Kimble, 719 F.2d at 1255.103 See, e.g., id.104 E.g., Waterman, 732 F.2d at 1533; Baresh, 595 F. Supp. at 1137.

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justification where the prosecutor seeks complete information, thecontingent agreement elicits no more testimony than the standardplea bargain. Because the prosecution does not know the extent ofa witness's knowledge, the prosecutor must make a subjective deci-sion whether to confer or withhold the benefits of the bargain. Evenif the witness fails to reveal information, the prosecutor might stillgrant the full bargained-for leniency because he was unaware of thedeficiency. These kinds of judgments are often the basis of tradi-tional bargains. If the prosecution finds that the witness is not re-vealing the whole truth, the court can release the government fromits promises under the agreement.1 05

As to the second justification, similar reasoning applies. Thegovernment may withhold the benefits of the agreement if it findsthat the witness has not told the truth. The conditions of the bar-gain will not affect the government's ability to distinguish perjuryfrom fact.

The third justification is indefensible because prosecutors havea duty to seek the truth, not merely convictions.1 06 That duty "ex-tends not only to marshalling and presenting evidence to obtain aconviction, but also to protecting the court and the accused fromhaving a conviction result from misleading evidence or perjuredtestimony." 07

Traditional plea bargains adequately achieve any administrativeinterest served by making plea bargains contingent. The prosecu-tion has the same power in both cases to deny the benefits of thebargain if the accomplice fails to reveal the full truth, and the sameimpotence in discerning whether the witness is withholding infor-mation. Further, a traditional plea bargain restricts the defendant'sfundamental right to a fair trial less than a contingent plea bargainbecause it does not needlessly encourage perjury.

The prohibition of contingent plea agreements should have anegligible effect upon the efficient administration of the judicial sys-tem. Although excluding testimony made pursuant to reward-in-duced agreements initially may deny the introduction of importantevidence, prosecutors quickly will revert to traditional plea bargains.When prosecutors realize that contingent agreements fail judicialscrutiny, they will prefer to bargain within the limits of fairnessrather than risk the testimony's exclusion.' 08

105 United States v. Swinehart, 614 F.2d 853, 858 (3d Cir.), cert. denied, 449 U.S. 827(1980); United States v. Simmons, 537 F.2d 1260, 1261 (4th Cir. 1976).106 Berger v. United States, 295 U.S. 78, 88 (1935); A.B.A., supra note 8, § 1.1(c).107 DeLuzio v. People, 177 Colo. 389, 396, 494 P.2d 589, 593 (1972).108 In civil cases the Supreme Court has developed a clearer, more overtly utilitarian

standard for weighing procedural due process questions than it has applied in criminal

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B. Other Approaches

Even if courts do not hold contingent plea agreements uncon-stitutional, they may exercise their supervisory powers to excludetestimony obtained pursuant to such agreements. Inherent supervi-sory powers enable judges to control the rules of their courts in or-der to achieve acceptable maximum levels of accuracy in admittedevidence. Prosecutorial misconduct and undue prejudice to the de-fendant may also merit the exclusion of certain evidence.

cases. In Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976), the Court set forth thefollowing test:

[O]ur prior decisions indicate that identification of the specific dictates ofdue process generally requires consideration of three distinct factors:First, the private interest that will be affected by the official action; sec-ond, the risk of an erroneous deprivation of such interest through theprocedures used, and the probable value, if any, of additional or substi-tute procedural safeguards; and finally, the Government's interest, in-cluding the function involved and the fiscal and administrative burdensthat the additional or substitute procedural requirement would entail.

Some scholars suggest that this utilitarian civil law due process standard, along withan analysis of fairness, should apply to criminal due process cases because the civil stan-da'rd more directly weighs the benefits of the procedures against their societal costs.Professor Nowak, for example, pinpointed Scott v. Illinois, 440 U.S. 367 (1979), inwhich the Supreme Court determined that indigent defendants may be denied ap-pointed counsel if the potential punishment does not include imprisonment, as a crimi-nal case in which the civil law standard should have been applied:

Even if the Court were to find the sixth amendment irrelevant [in deter-mining whether an indigent should have the right to counsel where noincarceration could be imposed], it should have examined due processvalues. Were this a civil case where a party was asking for some proce-dural safeguard, the Court, employing the Mathews balancing test, wouldhave examined the worth of the safeguard to the individual and its valuein insuring a reliable fact determination.... The Scott majority engagedin no such analysis. Use of the suggested due process methodologymodel would have required the Court to examine the value in a fair crimi-nal process to both the individual and society, the chance that individualrights were endangered by the absence of counsel, and the societal worthof having the added assurance of systemic fairness and equality of treat-ment in the adversary process.

Nowak, Criminal Law: Foreword-Due Process Methodology in the Postincorporation World, 70 J.CRIM. L. & CRIMINOLOGY 397, 408 (1979) (footnote omitted).

Contingent plea bargains fail the Mathews civil procedural due process test. Mathewsrequires that the judge weigh the defendant's interest in a trial on reliable evidence andthe risk of deprivation of that interest against the value to and burdens on the state ofusing alternative procedures.

The Supreme Court has stated that admissible evidence must have certain indicia ofreliability. See supra notes 24-32 and accompanying text. Because contingent agree-ments encourage biased or perjured testimony, a clear danger exists that these agree-ments will lead to violating the defendant's due process rights. Substituting traditionalplea agreements for contingent agreements and excluding testimony tainted by contin-gent agreements greatly promotes the processes of a fair trial at no cost to the govern-ment. The use of the Mathews balancing test therefore demonstrates that contingentplea agreements violate the civil due process standards advocated by Professor Nowakfor use in criminal cases.

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1. Exclusionary Rules of Evidence

Exclusionary rules prohibit prosecutors from using evidenceobtained in violation of the defendant's fourth,10 9 fifth,"10 andsixth111 amendment rights. The Constitution does not compel theexclusion of evidence obtained in violation of the defendant's rights;rather, the Supreme Court has held that the courts should employexclusionary rules to deter official misconduct and promote accu-racy. The common reference to the term "exclusionary rule" infourth amendment cases is unfortunate because this usage tends todivert discussion from other contexts that require exclusion. 12 Ex-clusions based on an effort to promote fair trials are designed tofurther an interest in accuracy1 13 and thus are distinguishable frommost other exclusions, such as the fourth amendment exclusions,which aim to deter unconstitutional governmental conduct.1 14

In Williamson v. United States115 the Fifth Circuit barred admis-sion of an informer's testimony in an effort to maintain a standard ofreliability. The court found the informer's testimony untrustworthybecause a contingent fee arrangement induced the informer topurchase illicit whiskey from the suspects in return for a specifiedfee for each seller caught. The court declared that such agreementsrender the ensuing evidence inadmissible because the arrangementtends to "frame up" the defendant and eliminates the possibility ofa fair trial. 116 The court noted that "it becomes the duty of thecourts in federal criminal cases to require fair and lawful conductfrom federal agents in the furnishing of evidence of crimes." 117

In both contingent fee arrangements and contingent pleaagreements, prosecutors reward one who testifies against the de-fendant. 118 Contingent plea agreements, however, involve muchhigher stakes; a reduction of a jail sentence by several years is far

109 See, e.g., Mapp v. Ohio, 367 U.S. 643, 655 (1961) (evidence seized in violation offourth amendment excluded from state trial); Weeks v. United States, 232 U.S. 383, 398(1914) (evidence seized in violation of fourth amendment excluded from federal trial).

110 See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966) (fifth amendment privilegeagainst self-incrimination secured).

111 See, e.g., Massiah v. United States, 377 U.S. 201, 207 (1964) (statements obtainedin violation of right to counsel excluded).

112 "Whether exclusion is or should be required in these contexts presents issuessignificantly different but no less important than those in the Fourth Amendment con-text." C. MCCORMICK, supra note 18, § 164, at 445.113 See supra text accompanying notes 24-32; infra text accompanying note 120.114 Stone v. Powell, 428 U.S. 465, 492 (1976).115 311 F.2d 441 (5th Cir. 1962).116 Id. at 444.117 Id.118 Baresh, 595 F. Supp. at 1136 (reversal required only when 'specific defendant

was picked out for the informer's efforts by a government agent'" (quoting UnitedStates v. Lane, 693 F.2d 385, 387-88 (5th Cir. 1982))).

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more valuable than a few hundred dollars. These heightened stakesincrease the likelihood that the bargain will heavily influence thecontent of the testimony. In accordance with the Williamson rule,courts should exclude evidence obtained pursuant to contingentplea agreements because these agreements encourage perjury andcourts have a duty to require "fair and lawful conduct" from govern-mental representatives. As one state court noted, "J]ustice is notserved where the prosecutor must simultaneously purchase and co-erce testimony in order to obtain a conviction which might not beachieved with trustworthy evidence."1 19

Courts employ other exclusionary rules when limiting instruc-tions cannot sufficiently diminish a jury's estimation of the evi-dence's credibility. Such prominent exclusionary rules as thehearsay rule, the opinion rule, the rules excluding bad character asevidence of a crime, and the original documents ("best evidence")rule have the elucidation of truth as their common purpose.1 20 Theexclusion of evidence at trial constitutes the last effective legal con-trol over the introduction of unreliable evidence. Courts must assertsuch control because the evidence, regardless of its reliability, willsway the jury. Limiting instructions as to the diminished weight thatthe jury should give unreliable evidence often have little effect.1 21

Some courts argue that because prosecutors must reveal theconditions of plea bargains at trial,122 juries can accurately weighand discount the credibility of witnesses testifying under contingentagreements. 123 Although courts widely accept this reasoning as ap-plicable to ordinary plea bargains,124 such reasoning lacks force withcontingent plea agreements. Traditional agreements involvestraightforward exchanges which juries can competently evaluate.Under an ordinary agreement, a witness lies mainly to downplay his

119 Franklin v. State, 94 Nev. 220, 225, 577 P.2d 860, 863 (1978).120 See C. MCCORMICK, supra note 18, § 72, at 170-71. Admittance of hearsay without

certain "indicia of reliability" violates the defendant's right to confrontation and dueprocess. Dutton v. Evans, 400 U.S. 74, 89 (1970); Barber v. Page, 390 U.S. 719, 721(1968); Pointer v. Texas, 380 U.S. 400, 404 (1965).

121 See Manson v. Brathwaite, 432 U.S. 98, 120 (1977) (juries are often unduly recep-tive to untrustworthy evidence); see also MCCORMICK, supra note 18, § 59, at 152 (juriesmay use evidence for improper purpose despite limiting instructions). See Lind, The Psy-chology of Courtroom Procedure (citing psychological studies that question jurors' obedienceto instructions), in THE PSYCHOLOGY OF THE COURTROOM 13, 29-31 (N. Kerr & R. Brayeds. 1982).

122 Giglio v. United States, 405 U.S. 150 (1972).123 Fallon, 776 F.2d at 734; Dailey, 759 F.2d at 200; Kimble, 719 F.2d at 1257;

O'Connor, 378 N.W.2d at 252 (plurality opinion).124 See, e.g., United States v. Tapia, 738 F.2d 18 (1st Cir.) (credibility of informer's

testimony hoping to avoid jail term question for jury), cert. denied, 469 U.S. 869 (1984);United States v. Insana, 423 F.2d 1165 (2d Cir.) (mere fact that witness may receivereduced sentence does not disqualify testimony; jury knows witness pleaded guilty and isawaiting sentence), cert. denied, 400 U.S. 841 (1970).

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own culpability. Because jurors come across self-exculpatory con-duct in their daily lives, they can readily understand this motivationand discount the credibility of the testimony accordingly. Undercontingent agreements, the witness aims not to exculpate himself,but to incriminate the defendant. Jurors likely have more difficultyquantifying the force of this motivation. Moreover, agreementscontingent upon the prosecution's satisfaction or the outcome ofthe case pressure witnesses in an unpredictable manner. Witnesseswill assess differently the testimony necessary to satisfy the prosecu-tor; although some will testify truthfully, others will embellish theirtestimony to varying degrees to ensure prosecutorial favor. Neitherjudge nor jury can assess accurately the subjective nature of the im-pact and ascertain the extent to which the terms of the agreementhave altered the content of the testimony.125 This element of uncer-tainty frustrates the jury's duty to judge the witness's credibility be-cause the government has complicated the credibility issue byimposing external constraints upon the witness's testimony. 126

Paradoxically, the more profound the impact of the agreement,the more problems the jury will have in assessing its impact. Thegreater the witness's stake in the prosecution's success, the less anexhaustive cross-examination will reveal. When the witness's futuredepends upon the recounting of persuasive testimony, he will for-mulate a logical and consistent story. 127 Furthermore, the witness

125 Contingent agreements might also affect a witness's testimony in the same waythat hypnosis affects testimony. A growing majority of states will not admit posthypnotictestimony because during hypnosis the subject may subconsciously invent details toplease the hypnotist. Later the subject becomes certain of the accuracy of his memoryand will testify with conviction. See United States v. Valdez, 722 F.2d 1196, 1201-04 (5thCir. 1984) (posthypnotic testimony excluded because it is so unreliable that it violatesdue process and the right to confrontation); People v. Shirley, 31 Cal. 3d 18, 723 P.2d1354, 181 Cal. Rptr. 243 (discussion of hypnotic memory as constructive rather thanreproductive), cert. denied, 459 U.S. 860 (1982). As with a participant of hypnotic induc-tion, the memory of a witness subject to a contingent agreement may be affected by thestrong desire to please the prosecutor. This impact upon perception and memory mayfurther insulate the witness's testimony from effective cross-examination.126 Rex v. Robinson, 30 B.C.R. 369, 376 (1921) ("It is this element of uncertainty

and the impossibility of determining the extent of it that makes this case so peculiar andunsatisfactory, and it cannot properly, in my opinion, be viewed as a question of credi-bility for the jury but one of frustration of their right to pass upon credibility.").127 It is obvious that if the witness did get the impression from the Court

that unless he told the same story to the Court as he did to the police, hewould be executed, then his testimony was tainted beyond redemptionand could not, in a legal sense, be weighed by the jury, because the wit-ness was no longer a free agent and there was no standard by which hisveracity could be tested or estimated. This is not merely a matter goingto the credibility of the witness, but something fundamentally deeper,viz., that by action of the Court itself the witness was fettered in his testi-mony and put in so dire a position that the value of his evidence was notcapable of appraisement ....

Id. at 375-76.

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probably will adhere to any previous untrue statements with perse-verance. Thus, admission of such testimony is potentially moreprejudicial than probative.

By eliminating the effectiveness of cross-examination in deter-mining the truth, the government extinguishes any opportunity todevelop accomplice testimony favorable to the defendant. 128 Thelack of effective cross-examination renders testimony "impure, du-bious and 'tainted beyond redemption.' "129 Courts must excludesuch testimony because they cannot determine whether the prosecu-tion would have offered the same evidence absent the government'suse of contingent plea agreements.

2. Supervisory Powers: The Duty to Maintain Standards ofProcedure and Prejudice

Judges have the inherent power to control the procedures andrules of their courts. The Supreme Court has approved the exerciseof supervisory powers to suppress evidence improperly obtained bythe government.'3 0 This inherent supervisory role "implies the

128 As noted in Brief of Appellee at 45, United States v. Dailey, 759 F.2d 192 (1st

Cir. 1985) (No. 84-1578), a parallel can be drawn between the exclusion of testimonyresulting from contingent plea bargains and the exclusion of witness testimony aboutsome thing destroyed by the government before the defendant had an opportunity toexamine or analyze it. See United States v. Carrasco, 537 F.2d 372 (9th Cir. 1976) (trialjudge erred in refusing to strike testimony of Drug Enforcement Administration agent,whose diary of events was destroyed in violation of federal law). Where the prosecutionis responsible for the destruction of evidence possibly favorable to the defendant, andthe destruction renders any cross-examination fruitless, courts should not allow theprosecution to use that evidence for its own purposes in court.129 People v. Green, 102 Cal. App. 2d 831, 839, 228 P.2d 867, 872 (1951) (quoting

Robinson, 30 B.C.R. at 375).Because the defendant exercises his sixth amendment right to confrontation of the

prosecution's witnesses primarily through cross-examination, Davis v. Alaska, 415 U.S.308, 315 (1974); Douglas v. Alabama, 380 U.S. 415, 418 (1965), contingent agreementsraise confrontation clause concerns. When an agreement constrains a witness to testifyin a certain manner, it limits relevant inquiries into guilt or innocence. Substantial limi-tations upon relevant cross-examination violate the defendant's right to question ad-verse witnesses. See United States v. Valdez, 722 F.2d 1196, 1201-02 (5th Cir. 1984)(posthypnotic testimony possibly violates sixth amendment confrontation clause be-cause it renders cross-examination ineffective); Fourteenth Annual Review of Criminal Proce-dure: United States Supreme Court and Courts of Appeals 1983-84, 73 GEO. LJ. 249, 657-67(1984) (sixth amendment rights are violated if right to cross-examination has been irrep-arably prejudiced). Consequently, the defendant is denied his fundamental right to a fairtrial. People v. Medina, 41 Cal. App. 3d 438,450, 116 Cal. Rptr. 133, 141 (1974) (undercontingent immunity arrangement, defendants were denied "any effective cross-exami-nation" and were "deprived of the fundamental right to a fair trial"); Franklin v. State,94 Nev. 220, 223, 577 P.2d 860, 862 (1978) (agreeing with Medina rationale).130 See, e.g., Elkins v. United States, 364 U.S. 206, 223-24 (1960) (whether evidence

was obtained by an unreasonable search and seizure by state officers is question of fed-eral law in which federal court must make independent inquiry); McNabb v. UnitedStates, 318 U.S. 332, 341-42 (1943) (court may formulate rules of evidence to apply infederal criminal prosecution beyond those provided in Constitution).

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duty of establishing and maintaining civilized standards of proce-dure and evidence."1 3 1 The Supreme Court has stated:

[F]ederal courts may, within limits, formulate procedural rules notspecifically required by the Constitution or the Congress. Thepurposes underlying use of the supervisory powers are threefold:to implement a remedy for violation of recognized rights; to pre-serve judicial integrity... ; and finally, as a remedy designed todeter illegal conduct. 132

Because prosecutors have broad discretion in the formation ofplea agreements, 3 3 judges must protect defendants fromprosecutorial misconduct. Courts have invoked their supervisorypowers to require fair governmental conduct at trial134 and have re-versed lower courts if the misconduct prejudicially affected the de-fendant's substantive rights.' 35 Allowing the prosecution to use theplea bargaining process to coerce a witness into testifying in a par-ticular fashion prejudices the defendant's right to a fair trial.

The reasoning behind the fourth amendment exclusionaryrules offers an illustration of the exercise of courts' supervisorypowers. Under the fourth amendment, all exclusions are justifiedon at least one of two grounds: deterrence of future illegal or un-constitutional conduct 36 or preservation of the integrity of the judi-cial system. 137

Excluding testimony made pursuant to contingent agreementsshould provide a strong deterrent to prosecutorial overreaching.Once the parameters of prosecutorial discretion are clear, prosecu-tors will not make contingent arrangements for fear that courts willexclude important testimony.

Excluding testimony made pursuant to a contingent agreement

131 McNabb, 318 U.S. at 340.132 United States v. Hasting, 461 U.S. 499, 505 (1983) (citations omitted).133 Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).134 See Alcorta v. Texas, 355 U.S. 28, 30-31 (1957) (conviction reversed because

prosecutor knew but did not disclose that witness was testifying falsely); Mallory v.United States, 354 U.S. 449 (1957) (conviction reversed because suspect not timelybrought before magistrate or warned that he had right to counsel or right to remainsilent); cf United States v. Librach, 536 F.2d 1228, 1230 (8th Cir.) (accomplice pleaagreement was not contingent upon government satisfaction with testimony and there-fore did not require exercise of supervisory powers in excluding testimony), cert. denied,429 U.S. 939 (1976).

135 United States v. Brown, 720 F.2d 1059, 1072-75 (9th Cir. 1983) (prosecutor'sreference to witness's polygraph test constituted impermissible vouching of witness'scredibility and "'more probabl[y] than not ... materially affected the verdict[s],'" re-quiring new trial (quoting United States v. Mouton, 617 F.2d 1379, 1385 (9th Cir.), cert.denied, 449 U.S. 860 (1980))).

136 Terry v. Ohio, 392 U.S. 1, 29 (1968); Elkins v. United States, 364 U.S. 206, 217,222 (1960); Wolf v. Colorado, 338 U.S. 25, 31 (1949).

137 Mapp v. Ohio, 367 U.S. 643, 659 (1961); Elkins, 364 U.S. at 222-23; Weeks v.United States, 232 U.S. 383, 392-93 (1914).

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will improve the accuracy and integrity of the fact-finding process.Preserving the integrity of the judicial system requires appropriatelimitations upon prosecutorial discretion.1 38 Allowing prosecutorsto encourage perjury in return for lenient sentences diminishes pub-lic respect for the criminal justice system.13 9 By enforcing contin-gent plea bargains, courts sanction the prosecutor's power topersuade an accomplice to disregard his oath of truthfulness in or-der to obtain penal leniency. This use of the bargaining process bythe prosecution perverts the truth-seeking purpose of the judicialsystem.

Courts also have the power to exclude evidence that creates asubstantial danger of undue prejudice.1 40 In this context, undueprejudice means a tendency to suggest decision on an improper ba-sis.141 Ajudge should weigh the probable effectiveness of a limitinginstruction before making the exclusionary decision. 142 Regardlessof limiting instructions, however, admittance of evidence made pur-suant to reward-induced agreements creates a great risk of unfairprejudice because the jury most likely will give the testimony greaterweight than it merits.143 Even if the judge directs the jury to give

138 Giglio v. United States, 405 U.S. 150 (1972); United States v. Marion, 404 U.S.

307 (1971); Brady v. Maryland, 373 U.S. 83 (1963).139 Not only were notorious criminals escaping substantial punishment after

long and arduous government efforts to put them behind bars, but sub-stantial harm was being done to the truth-seeking process, which is sup-posed to be one of the principal aims of the criminal justice system.Convicted criminals were being used to breed other criminal convictions,with none of the criminals receiving substantial punishment as long asthey could contribute to enlarging the "body count." (The body counthere, of course, is at least as misleading as that provided by General Wil-liam Westmoreland's staff in Vietnam, since the bodies are not reallydown and out after conviction. They rise from their ashes as federalwitnesses.)

Silvergate, Brief Cases, Boston Phoenix, Sept. 3, 1985, at 3, col. 1 (criticizing First Cir-cuit's reversal of district court's decision in Dailey; see supra text accompanying notes 61-75).140 Case law explicitly recognizes that a judge has great discretion in controlling the

admission of evidence. See, e.g., United States v. Brown, 547 F.2d 1264, 1266 (5th Cir.1977) ("trial court's ruling on relevancy and materiality of evidence will not be disturbedabsent a clear showing of an abuse of discretion"). Federal Rule of Evidence 403 codi-fies this power: "Although relevant, evidence may be excluded if its probative value issubstantially outweighed by the danger of unfair prejudice, confusion of the issues, ormisleading the jury, or by considerations of undue delay, waste of time, or needlesspresentation of cumulative evidence." See also UNIF. R. EVID. 45 ("Except as in theserules otherwise provided, the judge may in his discretion exclude evidence if he findsthat its probative value is substantially outweighed by the risk that its admission will...b) create substantial danger of undue prejudice or of confusing the issues or of mislead-ing the jury .... ).

141 FED. R. EvID. 403 advisory committee's note.

142 See FED. R. EVID. 105.

143 See supra note 121 and accompanying text.

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less weight to certain evidence, these limiting instructions cannotdiminish the testimony's initial impression upon the jury.

3. Contingent Agreements and the Bribery of Witnesses

One bribes a witness to induce him to change his testimony.Although prosecutors may enter into contingent agreements with-out a corrupt purpose, therefore avoiding the statutory definition ofbribery, 144 these agreements induce witnesses to testify in a certainmanner regardless of the truth. Like bribed testimony, testimonymade under contingent agreements is extremely unreliable.

Congress prohibits the bribery of witnesses and the acceptanceof bribes in 18 U.S.C. § 201.14 5 A person commits bribery by cor-ruptly giving or promising to give anything of value to a witness inreturn for favorable testimony. Although prosecutors probably donot arrange contingent plea agreements with corrupt intent, theynegotiate those bargains, by definition, with the intent to obtain par-ticular testimony. Because prosecutors already have the ability toobtain truthful testimony through traditional plea bargains, contin-gent agreements can only serve the purpose of eliciting particulartestimony which the prosecutor wants to introduce at trial. The ob-vious danger of this practice is that the prosecutor ignores the prin-ciple that all persons are assumed innocent until proven guilty andinstead usurps the jury's role of determining guilt."4 6

The witness's awareness of the prosecutor's wishes influencesthe testimony of that witness; therefore, the contingent agreementviolates the spirit, if not the letter, of the law. Congress drafted 18U.S.C. § 201 to enhance the veracity of in-court testimony. In con-trast, contingent plea agreements reduce the veracity of witnesses

144 See infra note 145.145 Bribery of public officials and witnesses

(d) Whoever, directly or indirectly, corruptly gives, offers, orpromises anything of value to any person .... with intent to influence thetestimony under oath or affirmation of such first-mentioned person as awitness upon a trial, hearing, or other proceeding, before any court.., or

(e) Whoever, directly or indirectly, corruptly asks, demands, exacts,solicits, seeks, accepts, receives, or agrees to receive anything of value...in return for being influenced in his testimony under oath or affirmationas a witness upon any such trial, hearing, or other proceeding...

Shall be fined not more than $20,000 or three times the monetaryequivalent of the thing of value, whichever is greater, or imprisoned fornot more than fifteen years, or both .....

18 U.S.C. § 201(d), (e) (1982).146 See Franklin v. State, 94 Nev. 220, 223 n.2, 577 P.2d 860, 861 n.2 (1978) ("IT]his

case demonstrates the potential for injustice which is inherent in selling an admittedfelon leniency, in order to buy testimony against another person whom the Constitutionpresumes innocent, but who nonetheless has been tried and found guilty in the prosecu-tor's mind.").

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by encouraging perjury. The government hinders the principaltruth-seeking aim of the statute by using contingent plea bargainingas a prosecutorial tool.

The American Bar Association Standards address the bribery ofwitnesses by stating that it is unprofessional conduct for an attorneyto compensate a witness, other than an expert, for giving testi-mony. 147 The Code of Professional Responsibility specifically pro-hibits contingent payments:

A lawyer shall not pay, offer to pay, or acquiesce in the payment ofcompensation to a witness contingent upon the content of his tes-timony or the outcome of the case.148

Contingent plea bargains are, in effect, bribes passing from thegovernment to accomplices in return for specific testimony underoath. Defendants lack comparable leverage in obtaining favorablewitnesses and are therefore at a strong disadvantage at the trial'soutset. Judicial tolerance of these agreements obstructs legislativeintent as codified in 18 U.S.C. § 201 and inhibits the search fortruth.

CONCLUSION

Courts must prohibit contingent agreements between accom-plices and prosecutors. Plea bargains conditioned upon indictment,conviction, or prosecutorial satisfaction with testimony encourageperjury. The admission of such unreliable testimony violates thedue process right of the defendant to a fair trial and cannot be justi-fied on the grounds of historical acceptance or administrative effi-ciency. Furthermore, judicial refusal to strike down contingentagreements pursuant to the court's inherent supervisory powers re-sults in the admission of prejudicial evidence and allows the prose-cutor to make a mockery of the truth-seeking function of thecriminal justice system.

Yvette A. Beeman

147 The A.B.A. Standards state: "(a) It is unprofessional conduct to compensate awitness, other than an expert, for giving testimony, but it is not improper to reimbursean ordinary witness for the reasonable expenses of attendance upon court .. " A.B.A.,supra note 8, § 3.2(a).

148 MODEL CODE OF PROFESSIONAL RESPONSIBILrrY DR 7-109(C) (1980).

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